Home > Uncategorized > ACLU and SEIU surprisingly and confusingly gang up on congregate care for the developmentally disabled during COVID crisis

ACLU and SEIU surprisingly and confusingly gang up on congregate care for the developmentally disabled during COVID crisis

The American Civil Liberties Union (ACLU) and the Service Employees International Union (SEIU) are usually strong advocates of accountability and transparency in government.

That’s why it is surprising that both of those organizations appear to be using the coronavirus pandemic to further a longstanding agenda, which we never knew they shared, to privatize services to people with intellectual and developmental disabilities.

It’s particularly surprising that the SEIU, a human services employee union that represents caregivers in the state’s two remaining developmental centers, would be on board with closing down state-run care facilities.

In a petition filed June 23 with the U.S. Department of Health and Human Services (HHS), the ACLU, SEIU, and a number of other advocacy organizations appear to start off on the right track in criticizing the federal government for its mismanaged response to the pandemic.

The petition identifies nursing homes, Intermediate Care Facilities for the developmentally disabled (ICFs), and group homes as sites of large numbers of COVID-19 infections and deaths that could have been prevented with better guidance for infection control, more testing, and better patient and worker protections.

But the petition then goes on to make a number of, at times, poorly conceived and even confusing claims and recommendations that ultimately appear intended to support a privatized care agenda.

At least some of the confusion centers around group homes, which the petition lumps together with ICFs as sources of “congregate care.”

The petition suggests that among the causes of the infections and deaths is the federal government’s failure “to divert people from entering nursing homes or other congregate settings” or to increase discharges from those settings “to the community.”

The argument the petition makes is that reducing the population in all of those facilities would “make social distancing possible.”

The petition defines congregate settings as including ICFs, psychiatric facilities, and group homes. Yet, group homes are considered part of the community-based system of care in Massachusetts and other states.  As a result, it isn’t clear what the ACLU and SEIU mean in stating that people living in group homes would be among those in congregate settings who should move “to the community.”

The petition, moreover, calls for reducing the population of nursing homes and congregate settings by 50 percent. Should HHS neglect to act within three weeks to enact that and other suggested measures, the groups will sue, the petition states.

It is unclear whether the ACLU and SEIU mean that nursing homes, ICFs, and group homes should all be emptied of 50 percent of their residents, or where those residents would then go.

VOR, COFAR’s national affiliate, issued a statement sharply critical of the petition, maintaining that:

…the ACLU has cast its net too wide, and falsely claimed to represent the interests of everyone receiving federally funded services who is classified as elderly or who has intellectual and developmental disabilities. In doing so, it apparently assumes that all such persons look and feel alike and need the same supports and level of care.

Further confusion over the HCBS waiver

Adding to the confusion over group homes is language in the ACLU/SEIU petition calling on HHS to “provide incentives to states to redesign their Medicaid programs to expand Home and Community Based Services (HCBS) and other community-based services and supports” with the goal of the 50 percent reduction in the population in congregate settings.

Once again, that language is confusing in that group homes in Massachusetts and other states have long been recipients of federal funding under an HCBS waiver of Medicaid regulations governing ICFs. In asking for an expansion of Medicaid funding under the HCBS waiver, is the petition suggesting that the money go toward care in a setting other than group homes?

ACLU/SEIU petition misreads the Olmstead Supreme Court decision

The ACLU/SEIU petition further misreads the landmark Olmstead v. L.C. U.S. Supreme Court decision, which paved the way for expansion of privatized care. Although the 1999 decision held that community-based care should be made available for those who desire it, it nevertheless recognized the role played by institutional care for those who can’t function under community-based care.

The Olmstead ruling stated that the Americans with Disabilities Act (ADA) “does not condone or require removing individuals from institutional settings when they are unable to benefit from, or do not desire, a community-based setting.”

We have asked the SEIU’s Massachusetts affiliate, Local 509, whether it is in support of the ACLU/SEIU petition. We have not heard back yet, but we hope they are in a position to disavow it.

There is a lot to be concerned about regarding the efforts of both the federal government and the state government here in Massachusetts to protect persons with intellectual and developmental disabilities from the virus. We’ve raised a lot of those concerns over the past few months.

At the same time, and for that reason, we don’t think it is appropriate for any organization to use the pandemic to support an anti-institutional agenda.

  1. July 13, 2020 at 2:11 pm

    Hi David I know I can sound like a broken record but we still need a writer to produce the response to the NDRN Segregated and Exploited and now this by the ACLU. That is the safest effort for now. We could put together an advance for Amy Lutz and figure out the ownership etc WE NEED a response to these idiots that carries some weight.

    Peace Tom Spellman 414 493 1341

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  2. Anonymous
    July 17, 2020 at 10:43 am

    I’ve done some research on this. SEIU and ACLU have a well documented long term goal of expanding Home and Community Based services, and this is in line with that goal.
    The focus on this specific petition is primarily on the crisis in nursing homes, where I assume you are aware, a disproportional number of deaths have been occuring due to Covid. “Other congregate settings” such as DD ICFs are implied in the filing, but the focus is on the crisis in nursing homes, so it’s a stretch to say this is a call to reduce DD ICFs by 50%. I’d say you and AFSCME are being alarmist and disingenuous since there is zero action being taken in Massachusetts to accelerate moving people out of DD faciilities due to the Covid crisis. Is the position of COFAR that people should not be moved out of nursing homes even if it increases the change of dieing from COVID? I look forward to your response. – Cliff

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    • July 17, 2020 at 12:07 pm

      This is in reply to the message above from Cliff, who is a member of SEIU Local 509 in Massachusetts.

      The ACLU/SEIU petition does call for a series of actions by the federal government that would ultimately dismantle all institutional and congregate care if carried out.

      Specifically, you contend it is a “stretch” on our part to say the petition calls for reducing the ICFs by 50%.

      Section II of the petition includes a specific demand that the Department of Health and Human Services “provide incentives to states…with the goal of reducing the population of nursing homes and congregate settings by 50 percent.” (my emphasis).

      “Congregate settings” are explicitly defined in the petition as including ICFs, psychiatric facilities, and group homes. So there is no escaping the plain language of the petition that the ACLU and SEIU are seeking a reduction of 50% of the population of the ICFs.

      As far as our position regarding nursing homes is concerned, it sounds as though you didn’t read our blog post, which starts by supporting the statement in the petition that the federal government has mismanaged response to the pandemic. We agree with the ACLU and SEIU that the government has failed to provide adequate guidance for infection control, adequate testing, and proper patient and worker protections in nursing homes and all other congregate settings.

      We don’t have a position on whether people should be moved out of nursing homes. But we do have a concern that the petition does not say where the residents of any of these facilities would go if they were moved out.

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